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The Corporate Litigant and Rule 30(b)(6) Depositions: The Duty to Prepare the Corporate Representative to Testify

On November 9, 2016, United States Magistrate Judge Paul D. Stickney (N.D. Tex.) entered an Order that serves as a reminder to corporate litigants and their counsel that the demands of Rule 30(b)(6) should not be disregarded when preparing a corporate representative to testify in response to an appropriately crafted deposition notice issued by an adverse party. In Clapper v. American Realty Investors, Inc., the defendant company had presented one of its executives for deposition in response to a notice served by the plaintiffs pursuant to Rule 30(b)(6). The plaintiffs moved for sanctions on the ground that the defendant company’s designated witness “was not prepared to respond to most of the areas of inquiry set forth in the deposition notice and gave the response ‘I don’t know’ over 100 times during his deposition.” After reviewing the parties’ submissions, the Court concluded: “It appears to the Court that [the designated corporate representative] was not adequately prepared for his Rule 30(b)(6) deposition.” In support of its ruling, the Court cited Mike Hooks Dredging Co., Inc. v. Eckstein Marine Serv., Inc., Civ. Action No. 08-3945, 2011 WL 2559821, at *2 (E.D. La. June 28, 2011) (“[O]nce in receipt of a 30(b)(6) notice of deposition, a corporation ‘must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the party noticing the deposition] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed[.]’” (quoting Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006))). The corporate defendant was ordered to produce the same witness (or another, more knowledgeable substitute), adequately prepared, for another deposition (with the associated expenses and plaintiff’s attorneys’ fees being borne by the company) and to pay the plaintiffs’ attorneys’ fees and costs for bringing the motion.

Other courts have imposed even harsher sanctions for a corporate party’s failure to live up to its Rule 30(b)(6) obligation to prepare its designated witness to testify. In QBE Ins. Corp. v. Jordan Enterprises, Inc., 277 F.R.D. 676 (S.D. Fla. 2012), for example, the Court ruled that because of its failure adequately to prepare its designated representative for his deposition, the company would be precluded from offering any testimony at trial on the topics about which he was “unable or unwilling” to offer any testimony during the deposition.” See also Fraser Yachts Fla., Inc. v. Milne, 2007 WL 1113251, at *3 (S.D. Fla. Apr. 13, 2007); Ierardi v. Lorillard, 1991 WL 158911 (Aug. 13, 1991).

As counsel representing a company that has been served with a reasonably specific set of relevant 30(b)(6) deposition topics, one would be well advised to make sure that the corporate client is made aware of the serious nature of its obligation to prepare its designated witness to testify knowledgeably. If it becomes apparent before (or even during) the deposition that the witness cannot adequately address particular topics, then consideration should be given to alerting opposing counsel of that fact and designating another witness who can fill in the gaps in the original designee’s understanding.

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